COURT FILE NO.: 04-SC-005592
DATE: 20070430
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
SCOTT DAVID GARDINER and SHARON ANTOINETTE GARDINER
Plaintiffs
(Appellants)
- and -
NATHAN CASEY MULDER,
FUTURE HOMES AND REAL ESTATE LTD., and ROBERT TATOMIR
Defendants
(Respondents)
Mark L. Hurley, Counsel for the Plaintiffs/Appellants
Corinne Sutherland-Nikota, Counsel for the Defendant/Respondent, Nathan Casey Mulder
Paul J. Enns, Counsel for the Defendants/Respondents, Future Homes and Real Estate Ltd., and Robert Tatomir
WRITTEN SUBMISSIONS
REASONS ON COSTS
Cusinato J.
[1] Following this court’s written judgment as to the issues raised on appeal from the deputy judge of the Small Claims Court, the court in its disposition relative to the appeal, concluded with the following statement;
On the issue of costs, I shall allow written submissions to follow within 30 days, if the parties are unable to resolve the same.
[2] The specified time-frame allowed to resolve the issue of costs has now expired and the court has received written submissions on this issue.
[3] With the disposition of the appeal initiated from the judgment what now remains is the subject of this court’s consideration as to costs.
[4] As set out in the Plaintiffs’ original and amended pleadings, the Plaintiffs’ claim provided for the maximum relief within the jurisdiction of that court.
[5] From our review of the amended claim against the respective defendants, it did not set out the specifics concerning liability against each defendant named. It rather, in simplistic terms, contended that all the defendants were liable in damages. We were required to assume it was relative to a claim for breach of contract and or tort relating to the inoperable condition of a hot-tub and the non-functioning windows relative to a home purchased under an Agreement of Purchase and Sale.
[6] The Appellants as Plaintiffs in the original proceedings raised two issues, both of which for the reasons given by the deputy judge were dismissed. The first claim before the deputy judge related to misrepresentation. During the purchase of the subject home pursuant to the Agreement of Purchase and Sale, it was purportedly represented that the home had “newer windows.” The additional claim for consideration before the Small Claims Court renewed on appeal related to the Plaintiff’s claim for damages for an inoperable hot-tub. From our examination of the Agreement of Purchase and Sale this collateral provision was incorporated within the agreement; “that the seller declares the hot-tub is in good mechanical working order.”
[7] In reference to this court’s written reasons for judgment following the appeal, the claim for damages relative to the term “newer windows” was dismissed for the reasons outlined by the deputy judge.
[8] In the reasons for the original dismissal before the deputy judge, he held that the term “newer windows” did not constitute a misrepresentation but was the subject of inquiry and allowed for patent investigation.
[9] On the question of the hot-tub and the claim for breach of warranty this issue raised the question of whether this collateral term constituting a warranty survived the closing of the purchase and sale. In its reasons, this court concluded contrary to the deputy judge that such warranty did not merge on closing of the purchase and sale. On this basis the Appellants were successful on this issue.
[10] With these dispositions where success is divided, it is argued by the Respondents that their worst position is that this constitutes divided success on the part of both the Appellants and the Respondents.
[11] In fact, from an examination of the issues placed before the Appeal Court because both issues were raised for consideration, the Appellants’ success was weaker than the Respondents’ by approximately $1,000.00.
[12] The Appellants, in their submissions as to cost, raise the issue that early in the litigation they delivered to the Respondents an offer to settle which remained open for acceptance throughout.
[13] That the amount stipulated in the offer to settle with the Respondents was less than the amount recovered by the Appellant.
[14] It was addressed by the Respondent for Mulder in their submissions that such offer was addressed to only one Respondent, Mulder, and therefore has no application.
[15] Contrary to the submission raised by the Appellant, it is noted that an offer to settle a claim in Small Claims Court does not continue to remain open after disposition, even if not withdrawn.
[16] In the wording of Rule 14.03(3) of the Small Claims Court Rules, it provides the following:
Expiry when court disposes of claim
(3) An offer may not be accepted after the court disposes of the claim in respect of which the offer is made.
[17] In the titled text, The Law of Costs, 2nd ed. (Ontario: Canada Law Book, 2005) at pp. 8-16, Orkin, the following is provided in respect of costs in appeals where the party is partly successful:
Cost where divided success
The general rule is that an appellant is entitled to costs where he or she has substantially succeeded on the appeal, but where the appellant succeeds only partially, or success is divided, no costs should be allowed.
[18] It is within the above considerations that I have concluded the issue of costs relative to the submissions received from counsel.
[19] Following our consideration of the above delivered judgment and counsels’ submissions regarding costs, we conclude, success being divided there should be no order as to costs.
Anthony E. Cusinato
Justice
Released: April 30, 2007
COURT FILE NO.: 04-SC-005592
DATE: 20070430
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
SCOTT DAVID GARDINER and SHARON ANTOINETTE GARDINER
Plaintiffs
(Appellants)
NATHAN CASEY MULDER,
FUTURE HOMES AND REAL ESTATE LTD., and ROBERT TATOMIR
Defendants
(Respondents)
REASONS ON COSTS
Cusinato J.
Released: April 30, 2007